May 2011

  • May 31, 2011

    The successful filibuster of Goodwin Liu’s nomination to the U.S. Court of Appeals for the Ninth Circuit represents an “enormous step backward,” for the judicial confirmations process that will take extraordinary action to reverse, writes Professor Richard W. Painter for the Star-Telegram.

    Painter, who served as the chief White House ethics lawyer for President George W. Bush, writes for the Fort Worth, Texas daily, that during his years in the White House, senators had filibustered some of Bush’s appellate court nominees, and that he saw “firsthand the damage that Senate filibusters do to the judicial selection process, and the hardships they impost on nominees and their families.”

    But, Painter said consensus began to build among lawmakers and voters that “filibusters were undemocratic and that senators had an obligation to vote and to allow their colleagues to vote.” Painter notes a “well-researched and well-argued law review article” by Sen. John Cornyn on filibusters of judicial selections. (Painter provides a link to that law review at the Legal Ethics Forum blog.)

    In the 2004 law review piece, as Painter notes, Cornyn wrote:

    Wasteful and unnecessary delay in the process of selecting judges hurts our justice system and harms all Americans. It is intolerable no matter who occupies the White House and no matter which party is the majority party in the Senate. … Filibusters are by far the most virulent form of delay imaginable.

    Cornyn’s words, however, were forgotten in the case of Liu. As Painter notes Cornyn along with nearly all the Senate’s Republicans voted to block the nomination.

    Painter writes that Bush had taken leadership on the matter during his presidency by “clearly stating that filibusters are wrong no matter which party is in the White House,” and that Republicans should follow his example, and not just with words.

    He concludes:

    To make that point clear, a Republican president could nominate and send to the Senate for confirmation Goodwin Liu and any other nominee who was filibustered during the past two administrations. And the president should demand an up or down vote. Period – no exceptions.

    Visit JudicialNominations.org to get the latest news and commentary on the judicial nominations process.

  • May 31, 2011

    The notion of a unitary executive, possessing all of federal executive power and capable (in principle) of complete control of inferior officers and agencies, is inconsistent with how presidents themselves regard the administrative state, writes Keith Bradley in a recent issue of the Columbia Law Review.

    Often, an administrative agency shares its authority with multiple other agencies, each checking its freedom of action.  Bradley, who is currently clerking, notes that presidents participate actively in parceling out executive authority and setting up the constraints on agencies.

    “Divided, structured administration offers mechanisms that can bolster presidential influence,” Bradley observes. “Presidents have little direct control over even important decisions made throughout the government. They can strengthen their hand by forcing agencies to interact with and monitor each other.”

    Bradley describes a particularly common form of interaction: One agency writes a rule that another agency has to apply.   For example, the Environmental Protection Agency (EPA) determines how much residue of a given pesticide is permissible in food, while the Food and Drug Administration (FDA) is responsible for enforcing the limit EPA sets. Each of the two agencies has a stake in the regulation of pesticide safety; but because neither has complete control, they have to respect each other’s policy preferences. The most important influence on each agency’s decision-making is thus another agency, rather than lobbyists or members of Congress.

    Interactions of this type are ubiquitous, Bradley says, and often presidents turn out to have been the driving force to create them. Yet these interactions function as they do because the rules communicated from one agency to another are binding. So when the president proposes such an interaction, he is volunteering to restrict the freedom of one component of the executive branch, in a manner apparently contrary to the unitary-executive ideal.  The benefit is the chance to have agencies supervise each other, more vigilantly than a president could ever do directly.

    Bradley concludes:

    Administrative agencies respond to checks and influences from their sibling agencies to such a degree that the most effective way for a President to steer the administrative state may often be to manipulate the system of checks.  In short, the traditional model of a hierarchical executive branch, with a President more or less effectively directing a set of independent agencies, is incomplete. The American administration is more like an ecosystem, in which the President may change the habitat but does not control the organisms within it.

    For more on the nature of presidential power, see a recent guest post by University of Chicago law school professor Eric Posner and Harvard law school professor Adrian Vermeule, and a response by Ohio State University law school professor Peter Shane.

  • May 31, 2011
    Guest Post

    By Craig Johnson, an attorney at Sweet and Associates in Milwaukee, Wis. Mr. Johnson is on the Board of Directors of ACS’s Milwaukee Chapter.


    In a ruling applauded by unions and advocates of open government, a Wisconsin trial court judge recently struck down the controversial law gutting collective bargaining for public employees. Judge Maryann Sumi ruled that the law had been passed in violation of the state's open meetings law, a provision founded on the state constitution's command that the doors of each house of the legislature shall remain open during session.

    The collective bargaining legislation provoked mass protests from unions and progressive activists when it was proposed by newly elected Governor Scott Walker (pictured) this past winter. It prompted Democratic state senators to leave the state in an effort to slow down passage. The Republican-controlled legislature responded with a parliamentary maneuver that allowed it to consider the bill without the constitutional quorum required for budget proposals. Republicans pushed the changes through conference committee in a March 9 session in a meeting for which they did not give requisite public notice. It was that action, which resulted in the Dane County Judge - who was appointed by Republican Governor Tommy Thompson- voiding the law.

    The battle over the law, which severely limits the collective bargaining rights of public sector employees, has sharply divided the state, and recall elections are now moving forward for nine senators - six Republicans and three Democrats. If the legislature ultimately has to reconsider the law, its future may hinge on the outcome of these elections. The other possibility is that the Republicans will try to include the collective bargaining changes in the 2011-13 budget now under consideration. This could force Republican senators to take another difficult vote on the eve of July recall elections. In the meantime, the Republican Attorney General has asked the state Supreme Court to vacate Judge Sumi's decision, saying she exceeded her power in striking down the legislation without finding a constitutional violation. Oral argument before the court is June 6.  

  • May 27, 2011

    In a piece for The Huffington Post, ACS Executive Director Caroline Fredrickson takes on the Tea Party’s effort to invade the nation’s public schools with the idea that the U.S. Constitution is “divinely inspired.”

    Fredrickson writes:

    The Tea Party "Patriots" are pushing a constitutional curriculum designed by the National Center for Constitutional Studies, which disseminates reading materials suggesting that God intended for America to be a Christian nation, that the Jamestown settlers starved to death because they were communists who failed to embrace capitalism, and that national parks are unconstitutional.

    Public schools, as the Supreme Court has noted time and again, are not forums for proselytizing. Organized prayer and spiritual services are for private institutions, such as churches or private schools. Voluntary student prayer is permitted. But public school officials who allow the Tea Party “Patriots” to enter their facilities on school hours to lecture students about a Godly Constitution, are running afoul of the Constitution’s First Amendment principle of a separation of church and state, and inviting lawsuits.

    Instead, Fredrickson writes, public schools would be wise to stick with accurate lessons on the Constitution and notes ACS’s long-running Constitution in the Classroom project.

    She writes:

    The American Constitution Society has been participating in Constitution Week for years through its Constitution in the Classroom program. By sending volunteers to schools around the country, we introduce students to the important principles in the Constitution that affect their lives. Such principles include the freedom of speech, equal protection under the laws, the right against unreasonable searches and seizures, and freedom of religion.

    There is room for debate about what elements of the Constitution should be featured in a Constitution Week curriculum, and of course, how to interpret those clauses. But the Tea Party "Patriots'" efforts to indoctrinate schoolchildren with material so far outside an honest and basic understanding of the Constitution should not be tolerated.

  • May 27, 2011

    A bill being pushed by Rep. Lamar Smith that would give the federal government greater power to detain immigrants for much longer periods of time is not only constitutionally suspect, but poor public policy, the American Civil Liberties Union’s Ahilan Arulanantham tells ACSblog.

    Arulanantham, deputy legal director of the ACLU of Southern California, chatted with ACSblog about Smith’s bill, H.R. 1932, following his appearance earlier this week before the House Judiciary Subcommittee on Immigration Policy and Enforcement to present testimony on the measure.

    “The bill would vastly expand the federal government’s ability to detain noncitizens – for months, sometimes years, while their cases are pending in the immigration courts and then on review in the federal courts,” Arulanantham told ACSblog. “And those portions of the bill actually apply to people who have never been convicted of crimes. As it turns out, about half of the people in the nation’s immigration centers have no criminal convictions at all.”

    The measure, he continued, would also allow indefinite, possibly permanent detention, of certain noncitizens who can’t be deported to their countries.

    Apart from the measure’s serious affronts to the Constitution, Arulanantham said it amounts to “extremely bad policy.” He noted that it costs tens of thousands of dollars per detainee, per year to imprison people in immigration detention facilities. The vast majority of those being detained have no criminal records, pose no risk of flight and yet this measure, if enacted, would drain resources from an already strapped federal government.

    Watch Arulanantham’s entire interview below, or download the podcast here. His testimony before the subcommittee is available here